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Statutory Rape & Unlawful Sexual Intercourse

PC 261.5(b), 261.5(c) & 261.5(d)

The law on the crime of statutory rape, also known as unlawful sexual intercourse with a minor, is found at California Penal Code Sections 261.5(b), 261.5(c) and 261.5(d).

The term statutory rape is actually an older term that is no longer used in criminal court. The modern term for statutory rape is unlawful sexual intercourse with a minor. The reason for the change in terminology is to reflect a major difference between the crimes of rape of a minor, which is a very serious and violent crimes, and sex with a minor that is unlawful only as a result of the minor's inability to consent to sexual intercourse (as opposed to being forced into sex). However, the term statutory rape is still the more common term outside of criminal court and for that reason both terms are used interchangeably in this article.

Statutory Rape Law & PC 261.5:

In short, it is a crime in California for a person who is over the age of seventeen to have sexual intercourse with a minor. A minor is a person under the age of eighteen. The term statutory in the crime of statutory rape means that the law (statute) invalidates a minor's consent to engage in sexual intercourse.

Sexual intercourse means actual penetration of the vagina with a penis. There are separate crimes for other types of sexual activity that does not include sexual intercourse, such as sodomy, sexual battery, oral copulation, penetration with a foreign object, and so on, but statutory rape crimes require proof of actual penetration of the vagina with the penis.

PC 261.5(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.

PC 261.5(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of misdemeanor statutory rape [Abbreviated].

PC 261.5(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either misdemeanor or felony statutory rape [Abbreviated].

PC 261.5(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either misdemeanor or felony statutory rape [Abbreviated].

Note I: CA law specifically excludes minors from criminal liability for their participation in the defendant's unlawful sexual intercourse. statutory rape. A minor is not considered to be an aider and abettor to the defendant's unlawful sexual intercourse.

Statutory Rape Punishments & Sentence

PC 261.5(b): Statutory rape charged under PC 261.5(b) is charged as a misdemeanor. If the defendant is convicted of PC 261.5(b) he or she may be sentenced up to 180 days in the county jail.

PC 261.5(c): Statutory rape charged PC 261.5(c) is charged either as a misdemeanor or as a felony. If the defendant is convicted of PC 261.5(c) as a misdemeanor he or she may be sentenced up to one year in the county jail. If the defendant is convicted of PC 261.5(c) as a felony he or she may be sentenced up to three years in the county jail.

PC 261.5(d): Statutory rape charged as PC 261.5(d) is charged either as a misdemeanor or as a felony. If the defendant is convicted of PC 261.5(d) as a misdemeanor he or she may be sentenced up to one year in the county jail. If the defendant is convicted of PC 261.5(d) as a felony he or she may be sentenced up to four years in the county jail. 

Note II: The maximum jail sentence listed for the above offenses assumes that the defendant is not convicted of additional crimes or sentenced according to special enhancements, such as prior prison enhancements.

Note III: The defendant may earn up to fifty (50%) credit off any actual jail sentence after a statutory rape conviction for good behavior while in custody.

Probation, Suspended & Split Sentences

A probation sentence is a period of supervision (as opposed to be sentenced to jail). During the period of supervision the defendant must not violate terms and conditions of probation. The terms and conditions of probation generally include a requirement by the defendant to break no law, pay fines, keep away from victims, etc. Some probation sentences include a mandatory short jail sentence as a term of probation; however, mandatory jail sentences that are associated with probation are usually served on work release or electronic monitoring (house arrest) as opposed to be required to spend time in actual jail. Misdemeanor probation sentences (also called informal or summary probation) do not require the defendant to check in with a probation officer; however, felony probation is supervised by a probation officer. Probation sentences are available for statutory rape convictions.

A suspended sentence is a predetermined jail sentence that is not actually served unless the defendant violates his or her probation sentence, usually by committing a new criminal offense. Suspended sentences may be available in some PC 261.5(c) and 261.5(d) statutory rape cases.

A split sentence is a sentence that is served partially in jail and partially out of jail such as on work release or house arrest.  Split sentences may be available in some PC 261.5(c) and PC 261.5(d) cases.

Whether or not a prosecutor charges misdemeanor or felony statutory rape charges depends largely on the facts of the case and the defendant's criminal history. Also, whether or not a probation sentence, a suspended sentence, or split sentence is available upon a conviction for statutory rape depends largely on the facts of the case and the defendant's criminal history.....

Sex Offender Registration

If the defendant is convicted of statutory rape, either as a misdemeanor, or as a felony, the defendant is not ordinarily required to register as a sex offender for life. However, the defendant may be ordered to register as a sex offender for the length of probation as a condition of probation in some cases. When a defendant is ordered to register as a sex offender as a condition of probation in a statutory rape case the registration requirement only lasts as long as the length of probation (usually 3-5 years). In very unusual cases where the court finds that the unlawful sexual intercourse was the results of an uncontrolled sexual compulsion, the court is authorized to require the defendant to register as a sex offender for life (PC 290.006).

Firearm Prohibition

With the exception of unlawful sexual intercourse charged under PC 261.5(b), which is always charged as a misdemeanor, statutory rape allegations may be charged as misdemeanors or as felonies. Crimes that may be charged alternatively as misdemeanors or as felonies are called wobbler crimes. If the defendant is convicted of felony statutory rape then he or she will lose his or her right to own or possess a firearm or ammunition. However, after a period of time the defendant may be allowed to have his or her felony statutory rape conviction reduced to a misdemeanor. If the defendant has his or her felony statutory rape conviction reduced to a misdemeanor then he or she may have his or her rights to own or possess a firearm restored after a certain period of time. To learn more about reducing a felony statutory rape conviction to a misdemeanor (or even having the conviction dismissed) contact our sex crimes attorney today for a free consultation.

Statutory Rape & Moral Turpitude Crimes

Misdemeanor statutory rape crimes are not considered to be crimes of moral turpitude. A crime of moral turpitude means a crime that is considered to be morally wrong. Convictions for crimes of moral turpitude generally carry severe and negative consequences for non U.S. citizens (immigration cases), and for professionals (i.e. doctors, dentist, nurses, lawyers, therapist, etc.). A felony statutory rape crime may be considered a crime of moral turpitude depending on the circumstances and any conviction of a felony statutory rape crime may also be considered an aggravated felony, which can carry severe consequences for purposes of immigration.

Statutory Rape and Three Strikes Sentencing

Statutory rape is not considered a serious or violent offense under California law. As such, PC 261.5 charges are not considered strikeable offenses under California's Three Strikes Sentencing Law. However, a felony statutory rape conviction of PC 261.5(d) may lead to a life sentence if the defendant has previously suffered two prior strike convictions even though the PC 261.5(d) itself is not considered a strikeable offense [PC 667].

Collateral Punishments for Statutory Rape

In addition to any jail or prison sentence, if convicted of statutory rape under PC 261.5(b), 261.5(c), or 261.5(d), the defendant could face any or all of the following additional punishments: immigration consequences, restraining orders (stay away orders to protect the minor), restitution (if the minor incurred any out-of-pocket costs as a result of the defendant's conduct such as cost of therapy or medical treatment), penalty fines and court security fees, mandatory HIV testing, civil lawsuits, probation or parole terms that may include further restrictions on your liberty, and more.

Common Defenses to PC 261.5 Crimes

  • Reasonable mistake by the defendant as to the age of the minor. Applies If the defendant held a true and reasonable belief that the minor was at least eighteen years old at the time of the otherwise unlawful sexual intercourse.
  • Statute of limitations or a legal time limit in which the district attorney may file a criminal complaint against the defendant. The statute of limitations is one year from the date of the alleged offense in misdemeanors and three years from the date of the alleged offense in felonies.
  • Lack of penetration of the vagina. Penetration does not have to be more than slight and neither ejaculation, nor scientific evidence, is required to prove penetration.
  • Coerced confessions by police or other police misconduct that might lead to a suppression of the defendant's confession or other evidence.
  • Insufficient evidence to prove the crime
  • Marriage to the minor at the time of the offense

To learn more about the crimes of statutory rape (unlawful sexual intercourse) and 261.5(b), 261.5(c), and 261.5(d), including sentences, defenses, and post conviction relief, contact our successful sex crimes criminal defense attorneys today for a free consultation

909.913.3138

Sex Crimes Criminal Defense Attorneys

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PC 261.5: Unlawful Sexual Intercourse

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Statutory Rape & Other Sex Crimes

  • Annoying a Child
  • Child Molestation
  • Failure to Register
  • Human Trafficking
  • Incest
  • Indecent Exposure
  • Lewd Acts
  • Loiter w/intent to solicit prostitution
  • Oral Copulation
  • Pandering
  • Pimping
  • Possession of Child Pornography
  • Prostitution
  • Rape
  • Revenge Porn
  • Sexual Assault
  • Sexual Battery
  • Sexual Penetration w/foreign Object
  • Sodomy
  • Statutory Rape
  • Unlawful Sexual Intercourse

Sex Crimes Criminal Defense Attorneys

909.913.3138

Unlawful Sexual Intercourse & PC 261.5

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Sex Crimes Defense Lawyers, Serving

San Bernardino County

Redlands, San Bernardino, Yucaipa, Highland, Fontana, Rialto, Ontario, Rancho Cucamonga, Chino, Adelanto, Victorville, Upland, Montclair, Colton, Lake Arrowhead

Riverside County

Eastvale, Riverside, Moreno Valley, Palm Springs, Norco, Jurupa Valley, Hemet, Perris, Banning, Beaumont, Corona

Los Angeles County

Pomona, West Covina, San Dimas, Glendora, Claremont, LaVerne, City of Industry

Sex Crimes Criminal Defense Attorneys

909.913.3138

PC 261.5(b), 261.5(c), & 261.5(d) Defense

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Crimes Related to Statutory Rape

  • PC 261.5(b) Misdemeanor unlawful sexual intercourse
  • PC 261.5(c) Misdemeanor or felony unlawful sexual intercourse with a minor more than three years younger than the defendant
  • PC 261.5(D) Misdemeanor or felony unlawful sexual intercourse with a minor under sixteen years old and a defendant older than twenty-one years old
  • PC 288a(b)(1) Misdemeanor or felony oral copulation with a minor under eighteen years old
  • PC 289(h) Misdemeanor or felony sexual penetration by object with a minor under eighteen years old
  • PC 286(b)(1) Misdemeanor or felony sodomy with a minor under eighteen years old

Sex Crimes Criminal Defense Attorneys

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Statutory Rape Law & Defense

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Post Conviction Relief for PC 261.5 Charges

Our experienced sex crimes attorneys represent defendants who have been previously convicted of unlawful sexual intercourse (statutory rape) in post conviction relief issues, including

  • Violation of probation hearings (Vicker's Hearings)
  • Expungement (Clearing criminal history) for prior PC 261.5(b), 261.5(c) and 261.5(d) convictions
  • Modification of probation terms (Felony and misdemeanor terms associated with statutory rape convictions)
  • Early termination of probation (Felony and misdemeanor term lengths associated with statutory rape convictions)
  • Certificates of rehabilitation (For felony convictions of PC 261.5(c) and 261.5(d)).
  • Sealing and destruction of criminal records for arrest on PC 261.5 charges that do not lead to convictions.
  • Appeals and withdrawal of guilty pleas for all PC 261.5 crimes, and more

Statutory Rape or Unlawful Sexual Intercoure Law in California PC 261.5(c) 261.5(d)

 
 
 
 
 
 

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